Free Response in Opposition to Motion - District Court of California - California

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1 DANZ & GERBER STEPHEN F. DANZ SBN 68318 2 13418 VENTURA BOULEVARD SHERMAN OAKS, CA. 91423 3 TEL: (818) 783-7300 FAX: (818) 995-7159 4 DANZ & GERBER MARCUS JACKSON SBN 205792 5 1550 HOTEL CIRCLE NORTH, SUITE 170 SAN DIEGO, CA. 92108 6 TEL: (619) 297-9400 FAX: (619) 297-9444 7 Attorney for Plaintiff JAMES RICHARD STIEFEL 8 9 10 11 12 JAMES RICHARD STIEFEL, an individual; 13 Plaintiff, 14 v. 15 BECHTEL CORPORATION, a Corporation; 16 BECHTEL CONSTRUCTION COMPANY, a Corporation; and DOES 1 through 100, 17 INCLUSIVE, 18 19 20 I. 21 INTRODUCTION. Plaintiff JAMES RICHARD STIEFEL hereby opposes Defendant BECHTEL Defendants. PLAINTIFF'S OPPOSITION TO DEFENDANTS' MOTION TO DISMISS AND/OR TO STRIKE PORTIONS OF PLAINTIFF'S COMPLAINT Judge: The Honorable Marilyn L. Huff Court: Courtroom 13, 5th Floor Date: February 11, 2008 Time: 10:30 a.m. CASE NO.: 08 CV 0037 H (WMc) UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

22 CORPORATION'S ("BECHTEL") Motion to Dismiss and to Strike his Complaint pursuant to 23 Federal Rule of Civil Procedure ("FRCP") 12(b)(6) and 12(f). This Opposition is based on the fact 24 that Plaintiff has properly exhausted administrative remedies by timely filing a charge of 25 discrimination with the United States Equal Employment Opportunity Commission within the 26 applicable time limits. 27 / / / 28 1. MEMO. OF POINTS & AUTHORITIES IN OPPOSITION TO MOT. TO DISMISS/STRIKE 08 CV 0037 H (WMc)

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1 II. 2

BACKGROUND FACTS AND PROCEDURAL HISTORY. Mr. Stiefel began work for BECHTEL, a subcontractor of Southern California Edison

3 ("SCE") at the San Onofre Nuclear Generating Station ("SONGS") in May 2004 as an ironworker 4 in the facilities department. There he worked for a year and a half until he was moved over to the 5 Unit 1 decommissioning project. Complaint ¶¶7-8. 6 Mr. Stiefel was working on January 31, 2006 when he got his hand wedged in a piece of

7 equipment that he was directed to use by his foreman, despite the fact it wasn't the proper tool 8 needed to safely perform the job. Mr. Stiefel suffered injury to his left thumb; eventually he 9 learned it was a torn tendon. Initially Mr. Stiefel saw a company worker's compensation doctor, 10 Dr. Earl Miller, who placed his thumb in a splint and set up a follow-up appointment for February 11 3, 2006 at 9:00 a.m. Mr. Stiefel saw Dr. Miller again on February 7, 2006. The doctor examined 12 his thumb, put it back in the splint, prescribed mediation and sent Mr. Stiefel on his way. Mr. 13 Stiefel actually had a torn tendon in his thumb but he was released to full time regular duties with 14 no restrictions. Id. ¶¶16-19. 15 Mr. Stiefel had concerns about his ability to perform his regular duties so he decided to talk to

16 someone higher up regarding his injury. He spoke to Mike Rodriguez, the Bechtel Jobsite 17 Superintendent, and showed him paperwork from the insurance carrier. Mr. Stiefel then returned to 18 his work area and his supervisor Dan Stemple, an SCE employee, took him to meet with John 19 Patterson the SCE supervisor in charge of the Unit 1 decommission. Mr. Patterson wanted to get the 20 Edison safety department involved to get Mr. Stiefel's injury properly addressed. Mr. Stiefel 21 expressed concern that Bechtel would retaliate based on his consulting with SCE supervisors but Mr. 22 Patterson indicated that no retaliation should occur. Id. ¶¶20-22. 23 After this meeting with SCE supervisors, Jim Foral, the jobsite representative employed by

24 Bechtel, came to Mr. Stiefel and said he'd received a call from Barry Clark, the site manager for 25 Bechtel, who stated "Jim you need to get your butt over to my office right now, we've got a trouble 26 maker on the job." Mr. Foral met with Mr. Clark and several hours later an appointment was set up 27 for Mr. Stiefel with an orthopedist, because of SCE's involvement. Id. ¶¶23-24. 28 2. MEMO. OF POINTS & AUTHORITIES IN OPPOSITION TO MOT. TO DISMISS/STRIKE 08 CV 0037 H (WMc)

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1

Mr. Stiefel saw a new doctor, Dr. Gialamas, on Monday February 13, 2006. Dr. Gialamas x-

2 rayed his hand, did manipulations on his thumb and determined that Mr. Stiefel had a torn tendon. 3 This doctor started working Mr. Stiefel's hand into a cast. The doctor asked how long the hand had 4 been in this condition and was in disbelief upon learning that Mr. Stiefel had been performing his 5 normal duties, unrestricted, since the end of January. Dr. Gialamas released Mr. Stiefel back to work 6 on light duty, with no use of his left hand. Id.¶¶24. 7 Tuesday morning Mr. Stiefel returned to work and attended the regular morning safety

8 meeting where he handed his foreman Dave Smith the note from Dr. Gialamas. That day and the 9 next day Mr. Stiefel was given work for which he did not have to use his left hand. However, on 10 Thursday Mr. Stiefel was assigned tasks that required the use of both hands such as welding, cutting 11 with a torch, grinding, fabricating, climbing ladders and using rope to lift objects. At this time the 12 rest of the crew were doing less demanding jobs that did not require both hands. This went on for 13 three weeks. Mr. Stiefel suffered through performing the tasks he was asked to do knowing he was 14 being punished for having complained. All along and to this day there are and were jobs available he 15 could perform that would not require the use of both hands. Id.¶¶25-27. 16 Three full weeks later, in March 2007, Mr. Stiefel was laid off. The layoff was categorized as

17 a medical reduction in force. Mr. Stiefel was told that no one had a problem with his work. Rather, 18 he "pissed some people off" when he got Edison involved. Id. ¶28. 19 Thereafter, in April 2006, Mr. Stiefel filed a charge of discrimination with the California

20 Department of Fair Employment and Housing ("DFEH"). He then, in June 2006, filed a Complaint in 21 Superior Court of San Diego, North County Division for wrongful termination in violation of public 22 policy, failure to accommodate disability, retaliation, violation of the California Labor Code, 23 negligent supervision and intentional infliction of emotional distress. Subsequently Defendants 24 removed this matter to Federal Court and the parties engaged in several rounds of briefing over the 25 issue of federal enclave pre-emption. Ultimately this Court, despite abundant evidence to the 26 contrary, ruled that SONGS is a federal enclave and further rejected the California appellate court
th 27 decision Taylor v. Lockheed Martin Corp., 78 Cal. App. 4 472 (2000) and ruled that California's

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1 Occupational Safety and Health Act does not apply at SONGS. Thus this Court dismissed Plaintiff's 2 claims for Wrongful Termination, California Labor Code Violations, Disability Discrimination under 3 the Fair Employment and Housing Act, Retaliation under the Fair Employment & Housing Act, 4 Intentional Infliction of Emotional Distress and Negligent Supervision with prejudice. However, the 5 Court's prior dismissal of Stiefel's claims under the Americans with Disabilities Act was without
1 6 prejudice and those claims have never been dismissed with prejudice. See Exhibit C to Defendants'

7 Request for Judicial Notice at 2. 8 Plaintiff underwent surgery on his hand in June 2006 and proceeded to have regular medical

9 checkups. In subsequent months, Plaintiff's doctor, who performed the surgery, released Plaintiff to 10 work in a light duty capacity in late October 2006. During the late October 2006 time period, 11 Plaintiff, while waiting at home to learn if he would be placed back at work learned that BECHTEL 12 has refused to put him back to work, falsely claiming that no light duty work is available. On a 13 monthly basis MR. STIEFEL has been passed over for jobs because BECHTEL has maintained and 14 currently enforces a policy that no injured employee will be rehired without a "full medical release." 15 This 100% healed requirement is reflected in written documents evidencing the fact that BECHTEL 16 engages in per se violations of the Americans with Disabilities Act. Complaint ¶30. 17 Based on these new facts, as well as the previous facts from the original case, Plaintiff

18 therefore filed a new charge of disability discrimination with the DFEH in December 2006 and 19 received a right to sue letter dated December 19, 2006. See Exhibit A attached to Plaintiff's Request 20 for Judicial Notice, filed concurrently herewith. Within 30 days of receiving the DFEH right to sue 21 letter Plaintiff filed a separate charge with the EEOC on January 17, 2007. See Exhibit A to 22 Complaint. The EEOC issued a right to sue letter in September of 2007 and Plaintiff timely filed this 23 action in October 2007. See Exhibit A to Complaint. Now Defendants attack a select few allegations 24 of this new Complaint based exclusively on exhaustion of administrative remedies requirements. 25 / / / 26
1

Defendants' motion misrepresents the events at the February 2007 hearing. At that time Plaintiff had filed his charge

27 with the EEOC, he merely had not yet received a right to sue letter as the EEOC was going to investigate for a period of
180 days before issuing a right to sue notice. Plaintiff's counsel advised the Court and opposing counsel of this at the

28 time of the hearing of Defendant's Motion to Dismiss the First Amended Complaint in the first Stiefel v. Bechtel action. 4. MEMO. OF POINTS & AUTHORITIES IN OPPOSITION TO MOT. TO DISMISS/STRIKE 08 CV 0037 H (WMc)

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III. 1 2 3 4

ARGUMENT ­ PLAINTIFF HAS PROPERLY EXHAUSTED ADMINISTRATIVE REMEDIES AND THE ALLEGATIONS ATTACKED BY DEFENDANTS ARE RELEVANT BACKGROUND INFORMATION, THUS THE MOTION TO DISMISS AND/OR TO STRIKE SHOULD BE DENIED. A. LEGAL STANDARD ON A MOTION TO DISMISS AND MOTION TO STRIKE.

A Motion to Dismiss pursuant to Federal Rule of Civil Procedure Section 12(b)(6) tests the

5 legal sufficiency of the claims stated in a Complaint by asking whether the facts alleged in the 6 Complaint, which are assumed to be true, would entitle Plaintiff to relief. The motion must be denied 7 unless the facts alleged could not under any legal theory support a cause of action. See Conley v. 8 Gibson, 355 U.S. 41, 45-46 (1957). See also Balisteri v. Pacifica Police Dept., 901 F. 2d 696, 699 9 (9th Cir. 1990)(dismissal under FRCP 12(b)(6) is only proper where the Complaint lacks a cognizable 10 legal theory or lacks sufficient facts to state a cognizable legal theory). "A complaint should not be 11 dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set 12 of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. at 4513 46. 14 In ruling on the motion the Court must construe the Complaint in a light most favorable to the

15 Plaintiff in addition to accepting the factual allegations as true and determining whether Plaintiff can 16 prove any set of facts would entitle him to relief. See Cahill v. Liberty Mut. Ins. Co., 80 F. 3d 336, 17 337-38 (9th Cir. 1996). All factual allegations, no matter how unlikely or improbable, are assumed to 18 be true. The Court is not called upon at the stage of a 12(b)(6) motion to weigh the strengths of each 19 cause of action. See Pareto v. F.D.I.C., 139 F. 3d 696, 699 (9th Cir. 1998); Jacobson v. Hughes 20 Aircraft Co., 105 F. 3d 1288, 1292 (9 th Cir. 1997). 21 Given the liberal policy in favor of amending pleadings in federal cases, motions to dismiss

22 under FRCP 12(b)(6) are disfavored. "The motion to dismiss for failure to state a claim is viewed
th 23 with disfavor and is rarely granted." Gilligan v. Jamco Develop. Corp., 108 F. 3d 246, 249 (9 Cir.

24 1997). Indeed, because of the liberality required in amending pleadings pursuant to FRCP 15(a), 25 where a Motion to Dismiss is granted leave to amend the Complaint should also be granted. "Where 26 a more carefully drafted complaint might state a claim, a plaintiff must be given at least one more 27 28 5. MEMO. OF POINTS & AUTHORITIES IN OPPOSITION TO MOT. TO DISMISS/STRIKE 08 CV 0037 H (WMc)

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1 chance to amend the complaint before the district court dismisses the action with prejudice." Bank v.
th 2 Pitt, 928 F.2d 1108, 1112 (11 Cir. 1991).

3

Pursuant to Federal Rule of Civil Procedure 12(f) a Motion to Strike is directed at "any

4 redundant, immaterial, impertinent, or scandalous matter." 5 B. 6 7 8 9 The California Department of Fair Employment and Housing ("DFEH")and the U.S. Equal PLAINTIFF HAS PROPERLY EXHAUSTED ADMINISTRATIVE REMEDIES BY TIMELY FILING HIS SECOND CHARGE OF DISCRMINATION WITH THE DFEH IN DECEMBER 2006 AND PURSUANT TO THE WORK SHARING AGREEMENT WITH THE EEOC THAT CHARGE WAS DEEMED FILED WITH THE EEOC AS OF THE DATE IT WAS RECEIVED BY THE DFEH.

10 Employment Opportunity Commission ("EEOC") have a "work sharing" agreement pursuant to 11 which any claim of discrimination filed with one agency is deemed constructively filed with the other 12 as of the same date. See McConnell v. General Tel. Co. of Calif, 814 F 2d 1311 (9th Cir. 1987). 13 McConnell involved an age discrimination claim under the federal Age Discrimination in 14 Employment Act and the determination that a timely filing for age discrimination with the DFEH 15 constituted a filing with EEOC because the DFEH is a "deferral agency" to which the EEOC will 16 defer matters for investigation. 17 18 19 20 McConnell, 814 F. 2d at 1316. 21 The fact that Stiefel first filed his claim with a state agency enforcing its own "The facts involved herein occurred in California, a deferral state under the ADEA. A deferral state is one to which the EEOC has agreed to defer cases for preliminary investigation; here the agency is the DFEH. When a deferral agreement exists, the regulation regarding simultaneous filing . . . will be enforced."

22 antidiscrimination laws extends the deadline for filing a claim with the EEOC from the standard 180 23 to 300 days. See eg, Laquaglia v. Rio Hotel& Casino, Inc., 186 F. 3d 1172, 1174 (9th Cir. 1995).2 24 There is a wrinkle in the federal law that provides that where a charge is first filed with a state agency 25 any EEOC action is stayed for a period of 60 days, thereby shortening the deadline to file with the 26 EEOC from 300 to 240 days, unless the state agency either waives the stay or terminates its 27
2

The EEOC has certified that the DFEH is a state agency whose findings and resolutions the EEOC is willing to

28 accept. See 29 C.F.R. §§1601.75 & 1601.80. 6. MEMO. OF POINTS & AUTHORITIES IN OPPOSITION TO MOT. TO DISMISS/STRIKE 08 CV 0037 H (WMc)

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1 proceedings before the 60 days is up. That issue does not arise here since pursuant to the work 2 sharing agreement between the DFEH and the EEOC the DFEH has waived the 60-day stay, thus 3 permitting the EEOC to immediately investigate. Id. at 1174-1175. See also Downs v. Dep't of 4 Water & Power, 58 Cal. App. 4th 1093, 1097 (1997) ("When a charge of discrimination or harassment 5 is timely filed concurrently with the EEOC and the DFEH, the investigation of the charge is deferred 6 by the DFEH to the EEOC under a work-sharing agreement."). 7 Nonetheless, even if the DFEH had not deferred to the EEOC, the DFEH completed its

8 investigation and issued a right to sue letter in December 2006. See Exhibit A attached to Plaintiff's 9 Request for Judicial Notice, filed concurrently herewith. Page five of Exhibit A to Plaintiff's 10 Complaint shows that the EEOC was notified of the fact that a DFEH filing had been submitted in 11 December 2006. This December 2006 filing with the DFEH satisfies the exhaustion of remedies 12 requirement as to the EEOC as well, despite the fact that Stiefel, out of an abundance of caution, went 13 ahead and filed a claim directly with the EEOC after receiving his second DFEH right to sue letter. 14 Therefore, Stiefel's December 2006 DFEH charge is deemed filed with the EEOC on the

15 same date, that date being less than 300 days since his termination in March 2006. Stiefel has thus 16 timely exhausted all administrative remedies. "Charges filed between 180 days and 300 days of the 17 unlawful act are timely as to the Title VII claim if filed initially with the DFEH." Chin, Wiseman, 18 Callahan & Exelrod, California Practice Guide: Employment Litigation, Section 16:47 (The Rutter 19 Group 2007). 3 Defendants' motion should be denied in its entirety. 20 / / / 21 / / / 22 / / / 23 / / / 24
3

25 Americans with Disabilities Act. By filing first with the DFEH Stiefel had 300 days from the date of his termination to 26 27 28
file with the EEOC concerning that termination. See Tewksbury v. Ottaway Newspapers, 192 F. 3d 322, 325 (2 Cir. 1999) (300 day deadline applies for filing ADA claim with EEOC where the disability claim is first filed with a state agency). As is clearly established above, the work sharing agreement between the DFEH and the EEOC deems any claim filed with one agency to be filed with the other on the same date. See Salgado v. Atlantic Richfield Co., 823 F. 2d th 1322, 1325-26 (9 Cir. 1987) ("Salgado filed his original complaint with the EEOC. The EEOC automatically filed the complaint with the Department under the agencies' work sharing agreement.").
nd

The same dual filing rules apply to claims of disability discrimination or failure to accommodate disability under the

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C.

PLAINTIFF CAN FILE A SUBSEQUENT DFEH OR EEOC CHARGE BASED IN PART ON THE SAME EVENTS AS A PRIOR CHARGE SO LONG AS THE SUBSEQUENT CHARGE OF DISCRIMINATION IS TIMELY, AND DEFENDANTS HAVE NO AUTHORITY TO THE CONTRARY.

Plaintiff has satisfied the EEOC filing requirements by submitting his second DFEH

5 Complaint in December 2006 and receiving a DFEH right to sue letter. See Exhibit A attached to 6 Plaintiff's Request for Judicial Notice, filed concurrently herewith. The second DFEH charge of 7 discrimination, which was based on new allegations of failure to hire in addition to the discriminatory 8 termination allegations of the April 2006 DFEH charge, was timely. Defendants offer no authority 9 for the proposition that Stiefel is limited to filing only one DFEH Complaint. So long as the later 10 Complaint was timely, which it was (and thereby it was dual filed with the EEOC so the EEOC filing 11 was timely as well), there is no case or statute invalidating the later DFEH filing because it repeated 12 allegations and incidents from the earlier DFEH Complaint. 13 D. 14 15 16 EVEN IF THE LATER DFEH/EEOC FILING WERE UNTIMELY AS TO PLAINTIFF'S TERMINATION, THE ALLEGATIONS DEFENDANTS SEEK TO STRIKE ARE PROPER AS BACKGROUND EVIDENCE IN SUPPORT OF PLAINTIFF'S TIMELY ALLEGATIONS OF FAILURE TO HIRE.

Even if the law did not provide that the December 2006 DFEH Complaint was deemed filed

17 with the EEOC at the same time or if there were some rule prohibiting multiple DFEH filings as to 18 the same events, the allegations of Defendants' failure to accommodate Plaintiff's disability up to and 19 including his termination are properly alleged in the Complaint in this action. The U.S. Supreme has 20 held that even where a wrongful termination or other acts of discrimination are not part of a timely 21 field EEOC charge, they are still relevant as background factual material. See National Railroad 22 Passenger Corporation v. Morgan, 536 U.S. 101 (2002) ("Nor does the [EEOC filing] statute bar an 23 employee from using prior acts as background evidence in support of a timely claim."). Obviously 24 the allegations that Defendants failed to accommodate Stiefel's disability and terminated his 25 employment in violation of the Americans with Disabilities Act are relevant background evidence 26 showing Defendants' discriminatory motive. Defendants do not contest that Plaintiff's new 27 allegations of failure to hire based on disability are timely as Defendants have not attacked these 28 8. MEMO. OF POINTS & AUTHORITIES IN OPPOSITION TO MOT. TO DISMISS/STRIKE 08 CV 0037 H (WMc)

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1 allegations in their motion. The details concerning Plaintiff's termination provide support for the 2 failure to hire allegations. Indeed, if the termination details were stricken there would be a gap in the 3 factual section of Plaintiff's Complaint rendering it incomplete and vague. Because the termination 4 and prior discriminatory conduct alleged in the current Complaint provide background information 5 relevant to the failure to hire claim, these background allegations should not be stricken. The 6 information at paragraphs 23 and 27-29 of the Complaint are not redundant, immaterial, impertinent 7 or scandalous, rather they are relevant to the other allegations that Defendants have not moved to 8 dismiss or strike. 9 10 IV. 11 CONCLUSION For all the foregoing reasons, Plaintiff respectfully requests that Defendants' Motion to

12 Dismiss and/or Motion to Strike should be denied. Should the Court grant any part of Defendant's 13 motion Plaintiff respectfully requests that the Court grant him leave to amend to allege that he 14 properly exhausted administrative remedies by filing a second DFEH charge in December 2006 15 which was deemed filed with the EEOC pursuant to the agencies' work sharing agreement. 16 17 18 DATED: 19 20 21 22 23 24 25 26 27 28 9. MEMO. OF POINTS & AUTHORITIES IN OPPOSITION TO MOT. TO DISMISS/STRIKE 08 CV 0037 H (WMc) January 28, 2008 By: DANZ & GERBER _/s/ Marcus Jackson_______ STEPHEN F. DANZ, ESQ. MARCUS JACKSON, ESQ. Attorneys for Plaintiff JAMES RICHARD STIEFEL